IN THE CASE

OF

THE PROSECUTOR

V.

ANNA DAVID

MEMORIAL FOR THE PROSECUTION

ON BEHALF OF:

THE OFFICE FOR THE PROSECUTION

TEAM “E” (P)

1st UCP NATIONAL MOOT COMPETION

2022
 TABLE OF CONTENTS

INDEX OF AUTHOURITIES..............................................................................................3
ABBREVATIONS ….............................................................................................................4
I. PRELIMINARY MATTERS............................................................................................5
A. Evidentiary Burden to Confirm Charges against Defendant..........................................5
B. The Case is Admissible before the International Criminal Crime (“ICC”).....................5
C. There was a Non-International Armed Conflict (“NIAC”) between the Dovariene Military and the
Warriors of Right(“WOR”)........................................................................................................6
D. The NIAC ended on December 2012............................................................................7
E. Common Elements to the Three Charges.......................................................................8

II. COUNT ONE: ANNA SHOULD BE TRIED FOR THE WAR CRIME OF ATTACKING
PROTECTED OBJECTS UNDER ARTICLE 8(2)(e)(iv) OF THE ROME STATUTE...10
A. The Elements of Crime (“EOC”) under Article8(2)(e)(iv) in the Rome Statute are fulfilled.10
B. Anna bears individual criminal responsibility for the war crime under Article 25(3)(a) of the
Rome Statute.........................................................................................................................14

III. COUNT TWO: ANNA SHOULD BE TRIED FOR THE WAR CRIME OF ATTACKING
CIVILIAN POPULATION UNDER ARTICLE 8(2)(e)(i) OF THE ROME STATUTE 16
A. The Elements of Crime under Article 8(2)(e)(i) in the Rome Statute are fulfilled........16
B. Anna bears individual criminal responsibility for ordering, soliciting or inducing the attack under
Article 25(3)(b) of the Rome Statute......................................................................................19

IV. COUNT THREE: ANNA SHOULD BE TRIED FOR THE WAR CRIME OF VIOLENCE TO LIFE
AND PERSON UNDER ARTICLE 8(2)(c)(i) OF ROME STATUTE 21
C. The evacuation of the medical personnel caused the death and cruel treatment of civilians and
wounded WOR fighters in violation of Article 8(2)(c)(i).........................................................21
D. Anna bears criminal responsibility as a military commander under Article 28(a) of the Rome
Statute....................................................................................................................................24

V. PRAYERS FOR RELIEF...............................................................................................28

 INDEX OF AUTHORITIES

Treaties and Conventions

 1949 Geneva Conventions.
 1977 Additional Protocols I and II, to the Geneva Conventions of 12 August 1949.
 Rome Statute of the International Criminal Court.
 World Heritage Convention (1972).
 Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954).
 The Second Protocol to the Convention for the Protection of Cultural Property in the Event
of Armed Conflict (1999).
 International Convention for the Suppression of the Financing of Terrorism

CASES

 The Prosecutor v Bahar Idris Abu Garda, (Trial Judgment) ICC-02/05-02/09 (8

February 2010), (“Bahar’s Case”), ¶40.

 The Prosecutor v Dusko Tadic, (Trial Chamber Judgment) IT-94-1-T (7 May

1997), (“Tadic’s Case”),

 7
The Prosecutor v Thomas Lubanga Dylo (Pre-Trial Chamber) ICC-01/04-01/06
(29 January 2007), (“Lubanga’s Case”)

 Prosecutor v Raumush Haradinaj, (Trial Chamber I) IT-04-84-T (3 April 2008),

¶49.

 The Prosecutor v Dragoljub Kunarac, (Judgment) IT-96-23& IT-96-23/1-A (12

June 2002) (“Kunarac’s Case”),
 The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, (Decision on the
Confirmation of Charges), ICC-01/04-01/07 (30 September 2008), (“Katanga’s
Case”), ¶380.
 Prosecutor v Dario Kordić and Mario Čerkez, (Appeals Chamber Judgment) IT- 95-
14/2-A (17 December 2005), ¶311.

 Prosecutor v Pavle Strugar, (Trial Judgment) IT-01-42-T (31January 2005),

(“Strugar’s Case”), ¶310

 The Prosecutor v Tihomir Blaskic, (Trial Chamber) IT-95-14-T (3 March 2000),

(“Blaskic’s Case”) ¶185.

 The Prosecutor v Callixte Mbarushimana, (Pre-Trial chamber I) ICC-01/04-01/10

 (16 December 2011), (“The Mbarushimana”), ¶148

 Prosecutor v Radovan Karadzic, (Prosecutor’s Pre-Trial Brief) ICTY, IT-95-05/18-

PT (29 June (2009), (“Karadzic’s Case”), ¶4.
 The Prosecutor v Laurent Ggagbo and Charles Ble Goude, (Trial Chamber) ICC-
02/11-01/15 (12 June 2014), (“Ggagbo’s Case”), ¶243.
 Prosecutor v Sylvestre Mudacumura (Decision on the Prosecutor’s Application under
Article 58) ICC-01/04-
01/12 (13 July 2012), ¶63.
 Prosecutor v Zejnil Delalic, (Trial Chamber) IT-96-21-T (16 November 1998), (“The
Delalic”), ¶424.
 Prosecutor v Dusko Tadic, (Appeals Chamber) IT-94-1-A (15 July 1999), (“Tadic
Appeal’s Case”), ¶232
 Prosecutor v. Sefer Halilović, (Trial Judgment) IT-01-48-T (16 November 2005),
(“Halilovic’s Trial”), ¶100.

Abbreviations

1. NIA: Non-International Armed Conflict (“NIAC”)

2. ICC: International Criminal Crime (“ICC”).
3. WOR: Warriors of Right(“WOR”).
4. EOC: Elements of Crime (“EOC”)
5. RP: Right path
 PLEADINGS

I. PRELIMINARY MATTERS

A. Evidentiary Burden to Confirm Charges against Defendant.

1. This case is now before the Pre-Trial Chamber pursuant to Article 61(7) of the Rome
Statute of the International Criminal Court (“Rome Statute”). At this stage, the Prosecutor
only has to prove that “there is sufficient evidence to establish substantial ground to
believe” that the defendant had committed each of the crimes charged.
2. There is no need to prove the charges against the defendant beyond reasonable doubt.1 So
long as the charges are established beyond “mere theory or suspicion” 2, they ought to be
confirmed and set for trial.

B. The Case is Admissible before the International Criminal Crime (“ICC”).

3. This case is clearly admissible before the ICC. Dovariene has itself referred the situation
in its territory from August to October 2021 to the ICC.3 Also, Dovariene has not taken any steps
to investigate the matter despite having jurisdiction over it.4 This shows that Dovariene is
unwilling and unable genuinely to investigate or prosecute ANNA.

1
The Prosecutor v Bahar Idris Abu Garda, (Trial Judgment) ICC-02/05-02/09 (8 February 2010), (“Bahar’s
Case”), ¶40.
2
Id, ¶39.
3
Facts, ¶ 26.
4
Article 17(1) of the Rome Statute.
C. There was a Non-International Armed Conflict (“NIAC”) between the Dovariene
Military and the Warriors of Right (“WOR”).

4. To establish a NIAC, two requirements5 must be established:

a. The existence of an organized armed group engaged in an armed

conflict with governmental authorities.6

5. A group is deemed to be organized and armed when it has the ability to plan and carry out
military operations for a prolonged period of time. 7 A hierarchical system of military
organization similar to those regular armed forces is not required.8
6. It is submitted that “Warriors of Right” (“WOR”), consisting of followers from Right Path
(“RP”) and clergymen from different religions, is an organized armed group. Their fierce
attacks on the Dovariene military forces and occupation of Dovariene districts are clear
evidence of their military prowess.9

5
The Prosecutor v Dusko Tadic, (Trial Chamber Judgment) IT-94-1-T (7 May 1997), (“Tadic’s Case”), ¶ 562.
6
Article 8(2)(f) of the Rome Statute; Tadic’s Case, ¶. 561; ICRC, “How is the Term "Armed Conflict" Defined in
International Humanitarian Law?”. March 2008, Opinion Paper, 3.
7
The Prosecutor v Thomas Lubanga Dylo (Pre-Trial Chamber) ICC-01/04-01/06 (29 January 2007), (“Lubanga’s
Case”), ¶234.
8
Commentary of 1987 Additional Protocol II, ¶4463.
9
Facts, ¶11.
 b. The armed violence between the parties was protracted.

7. To determine whether an armed violence is protracted, the emphasis should be placed

on its intensity rather than its duration.10
8. In February 2021, the Dovariene military engaged with the WOR daily.11 WOR had gained
control over 12 out 25 districts, and there were violent clashes between the two forces at
the other 13 districts12. All these incidents conducted for about 9 months demonstrate the
high intensity of the violence.

D. The NIAC ended on December 2021.

9. The NIAC extends beyond the cessation of hostilities until a peaceful settlement is
achieved between the Parties13 or when one of the Parties ceases to exist.14
10. It is submitted that the NIAC ended when Anna was ousted in a coup d’état, and left the
country with General Kamyani and Colonel Arthur. The three crimes charged thus
occurred during the NIAC.

10
Prosecutor v Raumush Haradinaj, (Trial Chamber I) IT-04-84-T (3 April 2008), ¶49.
11
Facts, ¶10.
12
Facts, ¶11.
13
Commentary of the Common Article 3 of the Geneva Convention 2016, ¶487.
14
Id, ¶489.
E. Common Elements to the Three Charges
a. The nexus between the crimes and the NIAC15

11. To fulfil this requirement, it is sufficient to prove that the crimes took place in the context
of and were as a whole “closely related to” the NIAC,16 such that the NIAC has played a
substantial part in the perpetrators’ ability and decision to commit the crime.17 Factors to
be taken into account include the perpetrator being a combatant; the victim being a non-
combatant, that the victim is from an opposing party; the fact that the act may be said to
serve the ultimate goal of a military campaign; and the fact that the crime is committed as
part of the perpetrator’s official duty.18
12. As WOR, the opposition group, gained control over the 12 districts of Dovariene by August
2021, Anna as the Commander-in-Chief reacted by launching a campaign to regain over
Bannut.19 This campaign, aimed at oppressing the RP religion, caused the destruction of the
Hill Temples of Bannut, the bombings in luckty’s suburban areas and the murder and cruel
treatment of the civilians and the wounded WOR fighters, all of which are the victims from
the opposing party. This establishes the nexus between the NIAC and violent incidents
giving rise to the charges.

15
Elements of Crime (“EOC”), Element 4.
16
Tadic’s Case, op. cit., ¶573.
17
The Prosecutor v Dragoljub Kunarac, (Judgment) IT-96-23& IT-96-23/1-A (12 June 2002) (“Kunarac’s Case”),
¶58; The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, (Decision on the Confirmation of Charges),
ICC-01/04-01/07 (30 September 2008), (“Katanga’s Case”), ¶380.
18
Id, ¶59.
19
Facts, ¶12.
 c. The awareness of the existence of Armed Conflict20

13. To satisfy the element, the perpetrator is not required to have made a legal evaluation of
the character of the armed conflict in coming to the ‘awareness’.21 It is merely required that
the perpetrator made inferences from factual circumstances that some form of armed
conflict was occurring.22 Anna lead the Dovariene military forces in its campaign to regain
control over Bannut from WOR. The emergency meeting23 and the reporting system of the
Dovariene Military shows that Anna clearly possessed awareness that an armed conflict
was occurring.24

20
EOC, Element 5.
21
EOC, Article 8 Introduction; Prosecutor v Dario Kordić and Mario Čerkez, (Appeals Chamber Judgment) IT- 95-
14/2-A (17 December 2005), ¶311.
22
Ibid.
23
Facts, ¶12.
.
24
Facts, ¶12.
 II. COUNT ONE: ANNA SHOULD BE TRIED FOR THE WAR CRIME OF

ATTACKING PROTECTED OBJECTS UNDER ARTICLE 8(2)(e)(iv) OF THE

ROME STATUTE

A. The Elements of Crime (“EOC”) under Article 8(2)(e)(iv) in the Rome Statute
are fulfilled.

14. In order to establish liability under this crime, five elements must be fulfilled.

a. The perpetrator directed an attack.

15. An attack encompasses any acts of violence against protected objects. 25 There is no
necessity to show a distinction between an attack that was carried out in the conduct of
hostilities or after the object had fallen.26
16. General Kamyani launched an attack on the Hill Temples of Bannut (“HILL Temples”)
early in the morning on 13 September 2021. 27 There is no necessity to prove the type of
attack, as long as the attack had caused destruction on the Hill Temples.28

25
The Prosecutor v Ahmad Al Faqi Al Mahdi, (Trial Chamber) ICC-01/12-01/15 (27 September 2016), (“Al
Mahdi’s Case”), ¶15.
26
Ibid.
27
Facts, ¶15.
28
Al Mahdi’s Case, op. cit. ¶15.
 b. The object of the attack was a building dedicated to art, historic as well as religion
which was not used for military objectives.

17. The Hill Temples is a UNESCO World Heritage Site. 29 UNESCO’s designation of these
building reflects their special importance to international cultural heritage. 30 The Hill
Temples is a cultural property which is of great importance to the national cultural heritage
of Dovariene to its people31 as defined under Article 1(a) of the 1954 Hague Convention. 32
Thus, the Hill Temples is a protected object.
18. A military objective refers to an object which by its nature, location, purpose or use: a)
make an effective contribution to military action, and b) whose total or partial destruction,
capture or neutralization, in the circumstances ruling at the time, offers a definite military
advantage.33
19. The Hill Temples is not a military objective as it is used for Right Path religious activities,
and is also located within the municipal district of Bannut34 and not anywhere near military
objectives of WOR.34 The suspicion that it was a military objective is unfounded as the
scouts were not able to verify and confirm it. Thus, it is not proven that the Hill Temples
is a military objective.

29
Facts, ¶4.
30
Al Mahdi, op. cit, ¶46.
31
R. O’Keefe, The protection of Cultural Property in Armed Conflict, (1st edn, Cambridge University Press, 2006)
104.
32
Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954), (“Hague
Convention”).
33
Bahar’s Case, Op. Cit., ¶58.
34
Facts, ¶13..
20. The special protection awarded to cultural property itself may not be lost simply because
of military activities occurring in the immediate vicinity of the cultural property. 35 There is
lack of any concrete finding from the Dovariene military scouts that there were
weapons located in the Hill Temples. The fact that the WOR fighters counter-fired shows
that they were defending themselves demonstrates that there are no firing positions or
heavy weapons in the Hill Temples.36
21. Special care must be taken in military operations to avoid damage to protected objects
unless they are military objectives.37 General Kamyani did not take all feasible precautions
in the choice of means of attack to avoid and minimize damage on the Hill Temples 38.
Instead, the Hill Temples were completely destroyed by the attack from General
Kamyani.39 In addition, General Kamyani’s suggestion to attack the Hill Temples rather
than to attack WOR fighters evinces a clear intention to destroy the Hill Temples.

c. The perpetrator intended such building to be the object of the attack.

22. To prove intention, the perpetrator must act within a direct intent to damage or destroy the
property in question.40 The destruction must have been committed intentionally to
institutions identified as dedicated to religion at the time of the acts.41
23. General Kamyani’s action showed that there was a deliberate attack on the Hill Temples.
He failed to find out what actually went on inside the Hill Temples. And yet, to prevent the
WOR fighters from being motivated by the Right Path,42 General Kamyani still
suggested to Anna to attack the Hill Temples.

35
Prosecutor v Pavle Strugar, (Trial Judgment) IT-01-42-T (31January 2005), (“Strugar’s Case”), ¶310.
36
Id, ¶193.
37
Customary International Humanitarian Law, Rule 38.
38
Article 7 of the Rome Statute.
39
Facts, ¶4.
40
Strugar’s Case, Op. Cit., ¶311.
41
The Prosecutor v Tihomir Blaskic, (Trial Chamber) IT-95-14-T (3 March 2000), (“Blaskic’s Case”) ¶185.
42
Facts, ¶15.
 d. The conduct took place in the context of and was associated with NIAC
and
Kamyani was aware of the factual circumstances that established its existence.

24. NIAC is ongoing when there is protracted armed conflict between governmental authorities
and organized armed groups or between such groups43 as submitted above.

43
1977 Additional Protocol II to the Geneva Convention of 12 August 1949, (“Additional Protocol II”)
B. Anna bears individual criminal responsibility for the war crime under Article 25(3)
(a) of the Rome Statute.

25. Anna, the Head of the Government, is liable for the attack of the Hill Temples under
Article 27 of the Rome Statute. A person with an official capacity is not exempted from
criminal responsibility under the Rome Statute.
26. Anna cannot avail to the defence of intoxication under Article 31(1)(b) as she knew that
Gadoom Root has intoxicating effect, and hence voluntarily intoxicated herself.44
27. To prove that Anna is liable as a commander, it is sufficient to prove that the principals to
a crime includes those individual who, in spite of their absence from the scene of the
crime, controlled or masterminded its commission because they decided how the offence
will be committed.45 It is also necessary to show that Anna has a shared intent to commit
the offence, regardless of the level of their contribution to a crime.
28. There are four elements to prove that Anna is a co-perpetrator:

i. There is an existence of an agreement or common plan between two or

more persons.

29. The agreement to attack the Hill Temples was made between General Kamyani, a legal
advisor, one religious advisor and Anna.46

44
Facts, ¶3.
45
The Prosector v Thomas Lubanga, (Trial Chamber) ICC-01/04-01/06 (14 March 2012). (“Lubanga’s Case”),
¶920.
46
Facts, ¶14.
 ii. The co-ordinated essential contribution made by each co-perpetrator
resulting in the realization of the objective elements of the crime.47

30. The agreement made by Anna upon the suggestion of General Kamyani shows that
Anna is aware that the plan will cause the destruction of the Hill Temples. 48 Essential
contribution is proven when the crimes resulted from the execution of the common plan
arising from mutual attribution.49 Being the Commander-in-Chief, she is responsible for
the attack on the Hill Temples as a co-perpetrator.

iii. In implementing their common plan, the consequence will occur in the
ordinary course of events.50

31. Anna is aware that the attack on the Hill Temples would cause a certain degree of
destruction towards the Hill Temples. Thus, the implementation of the order signed by
Anna amounted to a common plan to destroy the Hill Temples.

iv. Anna provides an essential contribution to the implementation of the

common plan.51

32. At the emergency meeting,52 Anna made an effective decision to attack the Hill Temples
by signing the order drafted by General Kamyani. The order set out the coordinated and
deliberate manner in which the attack was to be carried out, and is within the framework of
the agreement with the rest of her advisors.53

47
Lubanga’s case, op. cit.¶921.
48
Id, ¶982.
49
Id, ¶994.
50
Id, ¶1013.
51
Ibid.
52
Facts, ¶14.
53
Al Mahdi’s Case, Op. Cit., ¶54.
III. COUNT TWO: ANNA SHOULD BE TRIED FOR THE WAR CRIME OF

ATTACKING CIVILIAN POPULATION UNDER ARTICLE 8(2)(e)(i) OF THE

ROME STATUTE.

A. The Elements of Crime under Article 8(2)(e)(i) in the Rome Statute are fulfilled.

33. In order to establish liability under this crime, five elements must be fulfilled.

a. There was an attack directed by the perpetrator

34. An attack is defined as “acts of violence against the adversary, whether in offence or in
defence”.54 Shelling is a form of attack55, and even the mere launching of an attack without
any harmful impact on the civilian population or individual civilians is sufficient to fall
within the meaning of attack of Article 8(2)(e)(i).56
35. The act of the Dovariene Air Force bombing the five suburban buildings57 and carrying out
the airstrike58 by dropping more bombs is equivalent to shelling which falls under
the category of an attack. The shelling killed 150 people and left more than 300 others
injured.59
This proves that there was in fact an attack directed by Colonel Arthur.60

54
Bahar, Ch. I, Public Redacted Version, (Decision on the Confirmation of Charges) ICC-02/05-02/09-243-red (8
February 2010), ¶65; Prosecutor v Katanga, (Trial Chamber II) ICC-01/04-01/07-3436 (7 March 2014),
(“Katanga’s Case II”) ¶ 798; Prosecutor v Ntaganda, (Pre-Trial Chamber II) ICC-01/04-02/06-309 (9 June 2014),
(“Ntaganda’s Case”), ¶45.
55
Ntaganda’s Case, ¶46.
56
Prosecutor v Katanga, (Pre-Trial Chamber I) ICC-01/04-01/07-55 (6 July 2007), (“Katanga’s Case I”), ¶37
57
Facts, ¶16.
58
Facts, ¶18.
59
Facts, ¶20.
60
Facts, ¶18.
 b. The object of the attack were civilians

36. A civilian is anyone who is not a member of the State or non-State armed forces 61
and making the civilians as object of attack or doing acts or threats of violence to spread
terror among the civilians are prohibited. 62 The presence amongst the civilian
population of individuals who do not fit within the definition of a civilian does not
deprive the entire population of its civilian character.63 Where the attack is directed
towards a legitimate military objective and simultaneously the civilian population or
civilians not taking direct part in the hostilities, the perpetrator can still be prosecuted
under Article 8(2)(e)(i).64
37. In the present case, the bombings struck buildings situated in Luckty’s suburban area
where many RP followers resided.65 The fact that there are some WOR fighters hiding
among these civilians does not deprive the population of its civilian character and
subsequently the protection afforded to civilians. The Green Garden building is located at
the heart of Right Path residential community, a highly populated area, 66 evincing that
civilians were to be the object of the attack. Alternatively, even if the object of the attack
was only the Green Garden building, Colonel Arthur can still be prosecuted under Article
8(2)(e)(i) because the attack is directed simultaneously to the civilians as well.

c. The perpetrator intended for the civilians to be the object of the attack

38. The threshold for mental element is that the perpetrator knew or should have known about
the civilian character of the objects damaged.67 Such a standard is met when the attack has

been conducted intentionally with the knowledge, or when it was impossible to not know
that civilian property was being targeted.68

61
Katanga’s Case II, op. cit, ¶788.
62
Article 13 of Additional Protocol II.
63
The Prosecutor v Callixte Mbarushimana, (Pre-Trial chamber I) ICC-01/04-01/10 (16 December 2011), (“The
Mbarushimana”), ¶148.
64
Katanga’s Case II, op. cit., ¶802; Mbarushimana, id, ¶142.
65
Facts, ¶16.
66
Ibid.
67
Prosecutor v Radovan Karadzic, (Prosecutor’s Pre-Trial Brief) ICTY, IT-95-05/18-PT (29 June (2009),
(“Karadzic’s Case”), ¶4.
39. The five suburban buildings and the Green Garden building were situated in the Right Path
residential community.69 The statement made by the Right Path survivor who tried to save
his family from the attack70 further proves the civilians status of the residents.
Accordingly, it would be impossible for Colonel Arthur to not be aware of the civilian
status of the population.
d. The conduct took place in the context of and was associated with a NIAC

40. The bombings occurred in the course of an on-going NIAC, as submitted above.

B. Anna David individual criminal responsibility for ordering, soliciting or inducing the
attack under Article 25(3)(b) of the Rome Statute.

41. An individual behind a perpetrator may be individually criminally responsible, regardless

of whether the direct perpetrator is also responsible 71 “Ordering”, “Soliciting” and
“Inducing” refer to a conduct by which an individual is influenced by others to commit a
crime.72 The following elements need to be proven:73
i. The person is in a ‘position of authority’.

42. Anna is the President of Dovariene which also makes her the Commander-in-Chief of the
armed forces.74 This establishes her ‘position of authority’ on the Dovariene military.
ii. The person instructs another person in any form to commit a crime which in
fact occurs or is attempted.

43. Soliciting includes authorizing another person to commit a crime.75 Hence, Anna
authorizing the Dovariene military to attack Luckty’s suburban area qualifies as soliciting
the Dovariene military to commit a crime.76
iii. The order has a direct effect on the commission of the crime.

44. Direct effect is established if the orders are acted upon.77 There were already bombings
before Anna made the statement on national television78 on authorizing the Dovariene

71
Katanga’s Case I, op. cit., ¶493.
72
The Prosecutor v Laurent Ggagbo and Charles Ble Goude, (Trial Chamber) ICC-02/11-01/15 (12 June 2014),
(“Ggagbo’s Case”), ¶243.
73
Prosecutor v Sylvestre Mudacumura (Decision on the Prosecutor’s Application under Article 58) ICC-01/04-
01/12 (13 July 2012), ¶63.
74
Facts, ¶1.
75
Commentary of Rome Statute, 796.76 Facts, ¶18.77 Ntaganda’s Case, op. cit., ¶149.78 Facts, ¶16.
68
Blaskic’s Case, op. cit., ¶180.
69
Facts, ¶16.
70
Facts, ¶14.
 military to attack, and more bombings occurred after the statement was made. This proves
that the order made by Anna was acted upon by the Dovariene military.

iv. The person is at least aware that the crime will be committed in the ordinary
course of events as a consequence of the execution of or implementation of
the order.

45. Upon authorizing the Dovariene military to attack, Anna should have known and expect
that her order will be followed and that the crimes will be committed, especially since she
is the Chief-in-Commander of the Dovariene military.79

79
Facts, ¶1.
IV. COUNT THREE: ANNA SHOULD BE TRIED FOR THE WAR CRIME OF

VIOLENCE TO LIFE AND PERSON UNDER ARTICLE 8(2)(c)(i) OF ROME

STATUTE

C. The evacuation of the medical personnel caused the death and cruel treatment
of civilians and wounded WOR fighters in violation of Article 8(2)(c)(i).

a. Murder

i. The perpetrator killed one or more persons.

46. The actus reus of killing includes omissions as well as concrete actions. 80 If the perpetrator
was aware that death would occur in the ordinary course of events, the mental elements
will be fulfilled and the crime of murder can be established.81
47. By evacuating the medical personnel, Colonel Arthur has deprived the civilians and
wounded WOR fighters from getting adequate medical treatment. This constitutes an
omission to supply medical treatment for the sick and wounded. Colonel Arthur also had
reason to know that death would occur to the patients who were left behind with limited
medical assistance as the evacuation happened on the morning of 24 September; 82 a day
after the airstrike on the Green Garden building which caused more than 300 injuries 83 and
destruction of the power plant that cuts off the supply of electricity to the hospital.

80
Prosecutor v Zejnil Delalic, (Trial Chamber) IT-96-21-T (16 November 1998), (“The Delalic”), ¶424.
81
Prosecutor v Dusko Tadic, (Appeals Chamber) IT-94-1-A (15 July 1999), (“Tadic Appeal’s Case”), ¶232.
82
Facts, ¶22.
83
Facts, ¶20.
 ii. Such person or persons were either hors de combat, or were civilians,
medical personnel, or religious personnel taking no active part in the
hostilities.

48. Persons taking no part in hostilities 84 are protected person against any war crimes.85
Civilians constitute persons who are not, or no longer, members of the armed forces 86 and
hors de combat means persons who have become defenceless because of wounds or
sickness.87 The people left behind without the medical treatment were civilians and WOR
fighters that were wounded from the war 88 rendering them as hors de combat.

iii. The perpetrator was aware of the factual circumstances that established
this status.

49. The fact that the evacuation occurred at a hospital89 evinces that Colonel Arthur must have
been aware that the hospital patients would include wounded WOR fighters no longer
taking part in the hostilities. The Right Path Hospital is also located in Luckty’s suburban
area; a place highly populated with civilians.90

84
Civilians, persons who have laid down their arms and persons hors de combat for having surrendered or being
unable to engage in hostile acts.
85
Common Article 3 to Geneva Convention.
86
Customary International Law (“CIL”) Rule 5.
87
CIL Rule 47.
88
Facts, ¶23.
89
Facts, ¶22.
90
Facts, ¶16.
 b. Cruel Treatment

i. The perpetrator inflicted severe physical or mental pain or suffering upon

one or more persons.

50. Cruel treatment constitutes an intentional act or omission ‘which causes serious mental or
physical suffering or injury or constitutes a serious attack on human dignity’. 91 The failure
to provide adequate medicine or medical treatment would constitute the offence of "cruel
treatment" if it is carried out with the requisite mens rea. 92 The mental element of this
offense requires that the perpetrator acted with the direct or indirect intent to commit cruel
treatments.93 Being aware that severe physical or mental pain or suffering upon one or
more persons will occur in the ordinary course of events will fulfil the mental element of
this offence.94
51. When the evacuation of the medical staffs was done, it was a day after the airstrikes
happened.95 There were 300 injured civilians96 deprived of access to any medical treatment
due to the lack of power and shortage of medical staff. The sick and wounded could not
travel out to the city hospital as they risked being arrested as WOR fighters.97 Colonel
Arthur, who directed the airstrike, must be aware that there is a great need for medical
treatment for the wounded people. However, he still proceeded with the evacuation,
evincing an intention to cause serious suffering towards the Right Path people. Such
person or persons were either hors de combat, or were civilians, medical personnel, or
religious personnel taking no active part in the hostilities.

91
Blaskic’s Case, op. cit, ¶186.
92
Prosecutor v Mile Mrkšić et al., (Trial Judgment) IT-95-13/1-T (27 September 2007), ¶517.
94
Prosecutor v. Prlić, (Judgment), IT-04-74-T (vol. 1) (19 May 2013), ¶147 [Unofficial translation].
95
Article 30(2)(b) Rome Statute.
96
Facts, ¶22.
97
Facts, ¶20.
98
Facts, ¶23.
 ii. Such person or persons were either hors de combat, or were civilians,
medical personnel, or religious personnel taking no active part in the
hostilities.

52. The people left behind without the medical treatment were civilians and WOR fighters
who were hors de combat, as submitted above.99

iii. The perpetrator was aware of the factual circumstances that established
this status.

53. Colonel Arthur was aware that the people left behind without sufficient medical
treatment were civilians and hors de combats, as submitted above.100

D. Anna David criminal responsibility as a military commander under Article

28(a) of the Rome Statute.

54. A superior may be held responsible for the prohibited conduct of his subordinates for
failing to fulfil his duty to prevent or repress their unlawful conduct or submit the matter to
the competent authorities.101 To establish this criminal responsibility, three elements must
be fulfilled:102

i. Anna had effective control over the perpetrator involved in the crime.

55. The imposition of command responsibility is premised upon a superior-subordinate

relationship,103 in which the commander exercised effective control over the
subordinates.104 Effective control has been defined as “the material ability in preventing or
punishing the crime”.105 The de jure position of the accused creates a presumption of
effective control.106
56. Anna had de jure authority over Colonel Arthur as well as the Dovariene military since
Anna is the President of Dovariene, making her the Commander-in-Chief of the Dovariene
military as well.107 Hence, Anna was presumed to have effective control over the
perpetrator108 until the contrary is proven.109

96
99Facts, ¶22. Submission, ¶47.
Prosecution’s
97
Facts,
100 ¶20.
Id, ¶48.
98
Facts, ¶23.
 E. Anna David criminal responsibility as a military commander under Article 28(a)
of the Rome Statute.

57. A superior may be held responsible for the prohibited conduct of his subordinates for
failing to fulfil his duty to prevent or repress their unlawful conduct or submit the matter to
the competent authorities.101 To establish this criminal responsibility, three elements must
be fulfilled:102

ii. Anna had effective control over the perpetrator involved in the crime.

58. The imposition of command responsibility is premised upon a superior-subordinate

relationship,103 in which the commander exercised effective control over the
subordinates.104 Effective control has been defined as “the material ability in preventing or
punishing the crime”.105 The de jure position of the accused creates a presumption of
effective control.106
59. Anna had de jure authority over Colonel Arthur as well as the Dovariene military since
Anna is the President of Dovariene, making her the Commander-in-Chief of the Dovariene
military as well.107 Hence, Anna was presumed to have effective control over the
perpetrator108 until the contrary is proven.109

101
The Prosecutor v Jean-Pierre Bemba Gombo, (Pre-Trial Chamber II) ICC-01/05-01/08-424 (15 June 2009),
(“Bemba’s Case”), ¶405.
102
Ntaganda’s Case, op. cit., ¶164.
103
Prosecutor v. Sefer Halilović, (Appeals Chamber Judgment) IT-01-48-A (16 October 2007), (“Halilović’s
Appeal Judgment”), ¶210.
104Facts, ¶22.
96
Prosecutor v. Delalic et al, (Appeals chamber Judgment) IT-96-21-A (20 February 2001), (“Delalic’s Appeal
97
Facts, ¶20. ¶197.
Judgment”),
105Facts, ¶23.
98
Id, ¶256.
106
Eleis van Sliederegt, Individual Criminal Responsibility in International Law, (OUP 2012), 198.
107
Facts, ¶1.
108
Delalic’s Appeal Judgment, op. cit., ¶197.
109
Ibid.

iii. Anna knew or should have known that her subordinates were committing or
about to commit such crimes.

60. “Knowledge" means awareness that a circumstance exists or a consequence will occur in
the ordinary course of events.110 Actual knowledge may be proven if “a military
commander is part of an organized structure with established reporting systems”. 111 There
exist a reporting system between Anna and her subordinates based on General Kamyani’s
report to Anna.112 If actual knowledge cannot be proved with direct evidence, it may be
established by way of circumstantial evidence.113 Anna knew that her subordinates were
about to commit crimes following her order of authorizing the Dovariene military to
attack.114
61. Alternatively, even if Anna did not know, as the Commander-in-Chief, Anna possessed
constructive knowledge and should have known that her subordinates were committing or
about to commit such crimes. The “should have known” standard merely requires that the
superior has been negligent in failing to acquire knowledge of his subordinates illegal
conduct.115 The fact that Colonel Arthur told the press about his gratitude towards the
medical staffs that have been helping the Dovariene military 116 shows the availability of
such knowledge to Anna. Whether or not she had acquainted herself with such information
was immaterial.117

96
110
Facts, ¶22.
Article 30 Rome Statute.
97
111
Facts, ¶20. v. Hadžihasanović, (Trial Chamber) IT-01-47-T (15 March 2006), ¶94.
Prosecutor
98
112
Facts,
Facts,¶23.
¶13.
113
Prosecutor v Celebici, (Trial Chamber) IT-96-21-T (16 November 1998), ¶386.
114
Facts, ¶17.
115
Bemba’s Case, Op. Cit., ¶432.
116
Facts, ¶24.
117
Delalic’s Appeals Judgment, ¶239.

96
Facts, ¶22.
97
Facts, ¶20.
98
Facts, ¶23.
 iv. Anna, as the military commander, failed to take all necessary and
reasonable measures within her power to prevent or repress their commission
or to submit the matter to the competent authorities for investigation and
prosecution.

62. Upon knowing that the crime was about to be committed, Anna was required to warn the
subordinate against the unlawful practice.118 Consecutively, after the commission of the
crime, Anna had the duty to take reasonable and necessary punitive measures falling
within his material control119 which encompass investigation.120 Failure to do so amounted
to her approval of the crimes committed by Colonel Arthur. 121 In any event, failure to
prevent crimes cannot be cured by fulfilling the duty to repress or submit the matter to the
competent authorities.122
63. Anna took no action to prevent, repress or submit the crimes to the competent authorities.
This demonstrates Anna’s culpability over the crimes done by the Dovariene military.

118
Orić TJ, ¶331.
119
96
Halilović’s
Facts, ¶22. Appeal Judgment, Op. Cit., ¶63.
120
97
Prosecutor
Facts, ¶20. v. Sefer Halilović, (Trial Judgment) IT-01-48-T (16 November 2005), (“Halilovic’s Trial”), ¶100.
121
98
Blaskic’s
Facts, ¶23.Case, Op. Cit., ¶789.
122
Bemba’s Case,Op. Cit., ¶436.
 V. PRAYERS FOR RELIEF

The Prosecution respectfully requests for this honorable court to confirm the charges under

Article 8(2)(e)(iv), Article 8(2)(e)(i) and Article 8(2)(c)(i) of the Rome Statute as against

Anna.

RESPECTFULLY SUBMITTED,
AGENTS FOR THE PROSECUTION.